Docket No. EA230159RO
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: EA230159RO
ABC Realty Co. ADMINISTRATOR'S DOCKET
c/o David Eisenstein NO.: DD220026BO(7MD00950K)
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above-named owner filed a timely petition for
administrative review of an order issued concerning the housing
accommodations known as 4815 15th Avenue, Various Apartments,
Brooklyn, New York.
The Commissioner has reviewed all the evidence in the record an
has carefully considered that portion of the record relevant to the
issues raised by the petition.
The issue before the Commissioner is whether the
Administrator's order was correct.
The Administrator's order being appealed, DD220026BO was issued
on December 29, 1989. In that order, the Administrator affirmed
the finding of 7MD00950K, issued April 14, 1889 that the owner be
denied eligibility for a 1986/87 Maximum Base Rent (MBR) increase,
due to the owner's failure to serve the tenants with the Order of
Eligibility on a timely basis.
On appeal, the owner contends that it never received the Order
of Eligibility, which was issued by the Administrator on June 29,
1988 under the Docket #7M00950K(7MI00950K). The owner further
contends that it first learned of this order when it received a
letter from the D.H.C.R. dated January 20, 1989, informing the
owner that the Administrator hadn't received the Affidavit of
Service of the above-named Order of Eligibility. Pursuant to the
Rent and Eviction Regulations, such service had to have been made
upon the affected tenants by August 28, 1988, 60 days after the
issue date of June 29, 1988. The owner submits with its appeal an
Affidavit of Service dated January 27, 1989. The owner claims
Docket No. EA230159RO
that, inasmuch as Administrator's order 7MD00950K (issued April 14,
1989) states on its face that the Order of Eligibility was mailed
to the owner on January 20, 1989, the service of the order 7 days
later was timely.
The Commissioner is of the opinion that this petition should be
An examination of the record reveals that "Final Order Denying
1986/87 MBR's" reads in relevant part: "Owner... failed to
submit... an Affidavit of Service regarding Order of Eligibility-
Maximum Base Rent 1986/87 served on all affected tenants (which
finalized interim order), mailed to owner on January 20, 1989,
Docket #7M00950K" The owner interprets this passage to mean that
the Order of Eligibility was served upon it on January 20, 1989.
The owner thus concludes that its filing of an Affidavit of Service
of this order one week later is prima facie proof of timely filing.
The Commissioner notes, however that the only document served upon
the owner on January 20, 1990 was the above-mentioned letter
informing the owner that the Administrator had not yet received an
Affidavit of Service.
The Commissioner is further of the opinion, that, inasmuch as
the Final Order wasn't issued until April 14, 1989, the owner was
disingenuous in its assertion on appeal that the Final Order was
served on January 20, 1989. The Commissioner thus concludes that
7MD00950K's reference to a document "mailed to the owner on January
20, 1989" clearly alludes to the Administrator's letter, and that
the owner was aware of this allusion.
The Commissioner is further of the opinion that the owner has
not substantiated its allegation, made upon appeal, that it never
received the June 29, 1988 Order of Eligibility. Additionally,
there is no evidence in the record to indicate that the order was
not successfully mailed to the owner.
THEREFORE, in accordance with the provisions of the Rent and
Eviction Regulations, it is
ORDERED, that this petition for administrative review be, and
the same hereby is, denied, and that the order of the Rent
Administrator be, and the same hereby is, affirmed.
Joseph A. D'Agosta